SRINATH & SRINATH
[2018] FamCA 779
•28 September 2018
FAMILY COURT OF AUSTRALIA
| SRINATH & SRINATH | [2018] FamCA 779 |
| FAMILY LAW – CHILDREN – Best Interests – Undefended Hearing – Where the father has never participated in these proceedings – Where the mother seeks that she be allowed to relocate with the children to Country E – Where the mother seeks orders for equal shared parental responsibility and for the father to spend some limited time with the children in Australia by agreement and in Country E – Where the father has had limited involvement in the children’s lives since separation – Where the mother’s biological family reside in Country E – Where the children have a strong connection with their family in Country E – Where the children’s views should be given some weight – Where there is no question as to the mother’s parenting capacity – Where it is appropriate to make orders as sought by the mother. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN Family Law Rules 2004 (Cth) r 16.07 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Farmer & Rogers [2010] FamCAFC 253 Goode & Goode [2006] FamCA 1346 Jarrah & Fadel [2014] FamCAFC 14 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 MRR v GRR [2010] HCA 4 Taylor & Barker (2007) 37 Fam LR 461 |
| APPLICANT: | Ms Srinath |
| RESPONDENT: | Mr Srinath |
| FILE NUMBER: | PAC | 2192 | of | 2009 |
| DATE DELIVERED: | 28 September 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 15 June 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Rajesh Chand & Associates |
| THE RESPONDENT: | No appearance |
Orders
That the parenting orders made on 9 September 2009 be discharged.
That the mother and father have equal shared parental responsibility for the children X born … 2001 and Y born … 2007 (“the children”).
That the children live with the mother.
That the mother be permitted to relocate the children’s residence to Country E.
That the father spend time with the children as agreed by the mother and father in writing such writing to include email or SMS communication or in default of agreement as follows:
(a)once in every calendar year, in the Sydney metropolitan area from 9.00 am to 6.00 pm on up to two consecutive Saturdays and Sundays, with the mother to bring the children to Australia for at least one fortnight per year for this purpose.
(b)changeovers to be as agreed by the mother and father in writing such writing to include email or SMS communication and in default of agreement at the father’s home.
(c)In the event that the father travels to Country E, the children spend time with the father as agreed in writing such writing to include email or SMS communication or otherwise for up to five consecutive days in each calendar year, provided the children continue to attend school and their usual activities during that time.
That the father be permitted to telephone or use other electronic means such as Facetime to communicate with the children at any reasonable time, and that the mother do all things to facilitate that communication.
That the parent who has the children in his/her care inform the other parent promptly of any serious medical problems and treatment, and any other matter relevant to the children’s welfare.
That neither parent denigrate the other parent or the members of that other parent’s family, in the presence or hearing of the children.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Srinath & Srinath has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 2192 of 2009
| Ms Srinath |
Applicant
And
| Mr Srinath |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings commenced by Ms Srinath, the applicant mother, by Initiating Application filed 30 October 2017 in the Family Court of Australia.
The application concerns X born in 2001 and Y born in 2007, the children of the mother, and Mr Srinath, the respondent father.
Context
The mother is aged 51 and the father is aged 50.
The parties were married in 1994 and separated in January 2008. The parties’ divorce was finalised in March 2010.
There are three children of the relationship: 22 year old Mr Z, who is not a subject child of these proceedings, 17 year old X and 11 year old Y.
The father initially commenced parenting and property proceedings in the Local Court at Suburb B in March 2009. The mother filed a Response seeking parenting and property settlement orders.
Proceedings were subsequently transferred to the Federal Circuit Court at Parramatta and final orders were made by consent in September 2009 which provided for the parents to equally share parental responsibility for the three children and for the children to live with the mother and spend time with the father each alternate weekend and for half the school holidays. Interim property orders were also made by consent.
Subsequently, neither party appeared when the matter was next before the Court on 11 December 2009. All outstanding applications were dismissed.
The current proceedings
The mother initiated these proceedings in October 2017 seeking to discharge the prior parenting orders made in September 2009 and seeking orders that the two children of the relationship still under the age of 18 live with the mother and she be permitted to relocate with the children to Country E.
The father was personally served with the mother’s Application on 5 November 2017 and signed an Acknowledgment of Service.
On 12 December 2017 there was no appearance by or on behalf of the father. An Order was made for the parties to attend on a Family Consultant for the purposes of the preparation of a Children and Parents Issues Assessment. The mother’s solicitor was directed to inform the father in writing of the orders made.
The Children and Parents Issues Assessment was subsequently completed and released to the parties in April 2018. The father did not participate in the Assessment.
There was again no appearance by or on behalf of the father on 1 May 2018 before the Registrar and the matter was listed for judicial case management.
On 15 June 2018 there was again no appearance by or on behalf of the father. The mother’s application proceeded to undefended hearing.
Procedural fairness
Rule 16.07 of the Family Law Rules 2004 (Cth) (“the Rules”) relevantly provides:
Parties' participation
(1) Each party to an application set down for hearing on the first day before the Judge must attend in person and, if legally represented, with their legal representatives.
Note: The court may dispense with compliance with a rule (see rule 1.12).
(2) If a party does not attend on the first day before the Judge, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders in a manner ordered by the court.
(3) …
In the event that the Court was not disposed to apply the provisions of Rule 16.07, an adjournment of the proceedings would have been necessitated. The future conduct of the proceedings would be problematic in relation to the father’s involvement and leave uncertain the circumstances of the children.
Considerations pertaining to an adjournment of proceedings, particularly in relation to parenting proceedings, were considered by the Full Court in Jarrah & Fadel [2014] FamCAFC 14. Ainslie-Wallace J referred to Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, in which the majority of the High Court said at [217]:
… delay and costs are undesirable and that delay has deleterious effect not only upon the party to the proceedings in question but to other litigants. … It would impact on other litigants seeking a resolution of their cases.
Her Honour made reference to the principles imposed upon Judges conducting child-related proceedings and referred to the fifth principle set out in s 69ZN(7) of the Family Law Act 1975 (Cth) (“the Act”):
… that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Her Honour went on to say at [11] in Jarrah & Fadel (supra):
… The interests of justice are not the husband’s sole preserve. Delays in the resolution of the parenting proceedings have, no doubt placed stress and anxiety on the wife and perhaps caused her to incur costs. The children are represented and an Independent Children’s Lawyer has been appointed who has briefed, at cost to the taxpayers, Counsel.
Murphy J added that the predominant consideration in respect of the adjournment application is the best interests of the children. In that case, his Honour was of the view that, given the history of the litigation, it was in the best interests of the children for the litigation to be brought to an end as soon as possible.
Such is the case presently for consideration.
In the earlier decision of Farmer & Rogers [2010] FamCAFC 253, the Full Court, having made reference to Aon Risk Services (supra), said:
197. In our view, it is also important to consider the nature of parenting litigation. It is well established that the jurisdiction in child related proceedings is different from other inter party civil litigation and in certain circumstances, the rules of natural justice may be qualified. In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 Brennan J said at 457:
If an unqualified application of the principles of natural justice would frustrate the purpose for which the jurisdiction is conferred the application of those principles would have to be qualified. In some custody proceedings, some qualification of the principles of natural justice may be necessary in order to ensure paramountcy to the welfare of the child; eg, it may be necessary to keep a welfare report confidential.... But a desire to promote the welfare of the child does not exclude application of the principles of natural justice except so far as is necessary to avoid frustration of the purpose for which the jurisdiction is conferred. (citations omitted)
…
The Full Court then said:
201.We also observe that the proceedings in this case were pursuant to Pt VII of the Act. Division 12A of Pt VII contains provisions dealing with the conduct of child related proceedings. Division 12A was inserted in the Act by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). In the revised explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) dated 27 March 2006 (“the revised explanatory memorandum”) it was said at paragraph 338:
Schedule 3, Part 1 implements a range of amendments to provide legislative support for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. The intention is to ensure that the case management practices adopted by courts will promote the best will be interests of the child by encouraging parents to focus on their parenting responsibilities.
202.Section 69ZN of the Act sets out the principles for conducting child related proceedings and there are five principles enumerated. We do not propose to consider all five principles in our reasons. Section 69ZN(1) provides that the “court must give effect to the principles” in performing its duties and exercising its powers in such proceedings. Section 69ZN(2) provides that “[r]egard is to be had to the principles in interpreting this Division”. In paragraph 351 of the revised explanatory memorandum it was said that s 69ZN(2) “removes any doubt that regard is to be had to the principles in interpreting Division 12A”.
…
204.Section 69ZN(7) of the Act provides that “the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible”. At paragraph 357 of the revised explanatory memorandum, it was said: “This does not mean that the proceedings will be conducted in a casual way that detracts from the seriousness of the orders being made. It is intended that the proceedings be conducted in a way that makes the parties feel comfortable and that ensures that the matter can be finalised in a timely way”.
On 15 June 2018 the Court was satisfied that all appropriate attempts had been made to notify the father of the consequences of his nonappearance and that he had been given ample opportunity to engage in the proceedings. In the circumstances, it was appropriate for the matter to proceed on an undefended basis. Judgment was reserved to a date to be advised.
The Mother’s Documents
The mother relied on:
a)her Initiating Application filed 30 October 2017;
b)her affidavit filed 30 October 2017; and
c)the affidavits of Ms C, paralegal, filed 27 April 2018 and 14 June 2018 (as to notification to the father).
The Mother’s Evidence
The mother was born in Country D and moved to Australia in 1980 with her adoptive parents after being adopted at the age of 12. Her biological mother and three siblings moved to Country E in 1987 when the mother was 20 years old. She has maintained regular contact with her biological maternal family who continue to reside in Country E.
The mother married the father in 1994 and the parties have three children. The parties separated in 2008 and divorced in 2010.
In March 2008, around the time of separation, an Apprehended Violence Order (“AVO”) protecting the mother was made against the father following the father sending the mother a number of threatening and abusive text messages.
In circumstances as outlined earlier in these Reasons parenting and property orders were made by consent in September 2009 that provide for the parents to equally share parental responsibility for their three children, for the children to live with the mother and for the father to spend time with the children each alternate weekend and for half the school holidays.
The mother claims the father has substantially failed to comply with the 2009 consent orders to spend time with the children and seeks that they be discharged and orders made for her to relocate with the children to Country E where her biological maternal family continue to reside.
The mother deposes to numerous occasions following September 2009 when the father failed to comply with the consent orders such as discussing the court proceedings with the children, denigrating the mother to the children, failing to take the children to their scheduled activities when they were in his care, refusing to allow the children to attend important events or functions, consuming alcohol and marijuana when the children were in his care, failing to allow the children to speak to the mother when in his care, failing to pick up or drop off the children on time and failing to spend time with the children at all.
The mother further deposes to the children spending time with the father during the school holidays on only seven occasions since 2009 and the father never attending school functions for the children or requesting copies of school reports.
In May 2011 another AVO was made against the father for the protection of the mother following the father continuing to send abusive and threatening text messages to the mother.
The children have not spent overnight time with their father since 2015 and their contact with him is ad hoc and more recently it occurs via telephone a few times a year.
The mother has few family and friends, beyond her adoptive parents, in Australia. The children’s biological maternal grandmother visits Australia once every couple of years for about three to four months to assist the mother and visit the children but the maternal grandmother is now an age where travel is becoming difficult for her.
The mother and the children also visit Country E once every couple of years and the mother deposes to the children enjoying such trips and informing the mother that they do not want to return to Australia.
The mother works for a multinational and there is a possibility she could be transferred and maintain her current position if she were to relocate to Country E. Her work hours are very flexible.
The mother has significant family support in Country E and she has explored school and university options close to the maternal family with whom the mother and children would reside until they were able to find separate accommodation.
Children and Parents Issues Assessment
The mother and children attended on a Family Consultant for interviews on 9 April 2018. The father did not attend for interview and could not be contacted.
In relation to the oldest child X the Family Consultant relevantly reported the following:
… she sees [the father] a couple of times a year for a birthday lunch or something similar. She said she used to enjoy going to his house, as they got to stay up late and “muck around”. She said that she had been close to him, but as she matured her perspective on the situation changed, and an incident at her father’s house had meant she no longer wanted to stay overnight. She did not elaborate further on the incident.
[X] said she believes her relationship with [the father] would be different if he “put more effort into things”. She said that he still speaks to her like a child. [X] said she hopes to maintain a relationship with [the father], as one day when she has children, she would want them to meet him.
[X] said that she believes if she moves to [Country E], [the father] might make more effort, calling more frequently, or spending more time with them when they visit.
[X] said she misses her adoptive maternal grandparents, who lived with the family briefly, and she only see now once every week or two. She said she would miss them if she moved to [Country E]. She stated she would not miss anyone from her father’s side of the family, as she no longer feels connected to them, due to not seeing them regularly. She said they used to be close.
[X] said if she moves to [Country E] she can keep in contact with her Australian friends via Facetime, as she currently does with her [Country E] cousins. She said she may have to do an extra six months of school in [Country E], and that she intends to study psychology in [Country E] when she finishes school. [X] said if [the mother] does not receive permission to take the children to [Country E] to live, she will apply for an exchange program to study there anyway.
[X] said that she is close to her cousins in [Country E] and they would live on the same street and go to the same school there.
[X] said she worries about her mother and the stress she has of working, finances and dealing with family problems. She said she believes that in [Country E], her maternal biological grandmother would live with them and there would be lots of support for her mother.
In relation to the younger child Y, the Family Consultant relevantly reported the following:
… she believed today’s meeting was because the whole family wants to move to [Country E], and they need to get permission from [the father], who keeps saying “no”.
[Y] said she believes she should be able to grow up with family in [Country E], and that there are lots of cousins there the same age as her and her sisters. She said when they holiday in [Country E] she gets to see her family every day, and that the maternal biological grandmother has four children who all live in close proximity there.
[Y] said there had been some arguments within the maternal family in Australia and that it would be a “weight off [the mother’s] shoulders” to move away.
[Y] said she sees her father about once every five weeks and that it is silent and awkward when they have lunch together. [Y] said she used to enjoy time with her father’s family but she said she has not seen them for at least a year. She also said she has no cousins her age in Australia.
[Y] said she would miss her father a bit if she moved away, and that she believes he would miss them. She said they could call each other. She said he “barely makes an effort” at present.
… When asked about going to school in [Country E], [Y] said she would live near to the school, and would be in the same grade as some of her cousins.
The mother reported to the Family Consultant that she has no concerns about the safety of the children in the father’s care, particularly because his contact with them is substantially only via the telephone and occasional face to face meetings.
The mother, however, did report to the Family Consultant that the father was a heavy drinker and marijuana user during the parties’ relationship, consuming alcohol on a daily basis, and that the father would often become violent and aggressive when he was drinking.
Ultimately, the Family Consultant expressed the following opinions:
Currently both [X] and [Y] appear to be aligned with [the mother’s] view point that living in [Country E] will present more opportunities for them to be supported and connected to family members.
Despite [the mother’s] assertion that she believes the children only connect with [the father] due to obligation, it appears that both children display some attachment to [the father] as their father. It is not possible to predict how much moving overseas will disrupt this relationship, particularly without [the father’s] view point into their current relationship. The level of disruption will depend on factors such as the frequency of telephone contact and opportunities to visit, as well as [the mother’s] ability to actively support the relationship.
If the Court finds that [the mother’s] account of [the father’s] substance use is accurate, it may be that this adversely affects his ability to maintain a consistent relationship with the children.
It is noted that both children are facing significant educational milestones soon, with X due to complete her schooling and Y due to commence high school. The current uncertainty regarding future plans is likely to increase their anxiety regarding these transitions and make it difficult to prepare for the next stage.
Parenting
The relevant principles in relation to parenting and interim proceedings are well settled in Goode & Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (s 60CC(2)) and additional (s 60CC(3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Though the mother seeks orders that would allow her to relocate internationally, it is well settled law that proceedings involving relocation remain to be determined, like all parenting matters, by considering the best interests of the child in the context of the legislative framework. In Taylor & Barker (2007) 37 Fam LR 461, their Honours Bryant CJ and Finn J said:
[53] … when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible. (citations omitted)
Parental Responsibility
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption relevantly does not apply:
a)If there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b)…
c)If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the children’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent, the Court may, but is not required to, consider equal or substantial and significant time (s 65DAA(6)).
The mother seeks an order that she and the father equally share parental responsibility for the children. Despite the father’s lack of engagement in these proceedings, there is no reason in the circumstances that the presumption in favour of making such an order should not apply.
However, given the father’s lack of involvement with the children over the past few years and his complete disengagement from these proceedings, it is clear in this matter that upon a consideration of the matters discussed above and the best interest considerations (s 60CC) equal or substantial and significant time with the father would not be in the children’s best interests. Appropriate time will be determined according to the best interest considerations.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
The children’s relationship with the father is clearly strained by his lack of “effort” and involvement with them since separation but particularly since about 2015 when the children ceased spending overnight time with him. While the Family Consultant opined that the children showed an attachment to the father that went beyond mere obligation, it is clear that at present they do not enjoy a meaningful relationship with him. In any event, his lack of engagement with these proceedings makes it is difficult to say what impact, if any, the mother's proposed orders would have on the children’s relationship with their father. It can certainly be maintained should he be motivated to do so.
It is, otherwise, clear that the children have a positive and meaningful relationship with the mother, who has been their primary carer since birth, and it is important that this relationship continue.
Section 60CC(2)(b) – need to protect
While the mother raised allegations of the father’s drinking, drug use and aggressive behaviour with the Family Consultant she does not contend that the father poses a risk of harm to the children should they spend time in his care.
Given the ages of the children, the father’s lack of involvement in their lives in recent years and the lack of any allegations that the father poses a present risk of harm to the children, this consideration is of little utility.
The additional consideration: s 60CC(3)
Section 60CC(3) sets out the additional considerations:
a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
b)The nature of the relationship of the child with:
i)Each of the child's parents; and
ii)Other persons (including any grandparent or other relative of the child);
c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)To participate in making decisions about major long-term issues in relation to the child; and
ii)To spend time with the child; and
iii)To communicate with the child;
ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i)Either of his or her parents; or
ii)Any other child, or other person (including any grandparent or other relative of the child);
with whom he or she has been living;
e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)The capacity of:
i)Each of the child's parents; and
ii)Any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)If the child is an Aboriginal child or a Torres Strait Islander child:
i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii)The likely impact any proposed parenting order under this Part will have on that right;
i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)Any family violence involving the child or a member of the child's family;
k)If a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:
i)The nature of the order;
ii)The circumstances in which the order was made;
iii)Any evidence admitted in proceedings for the order;
iv)Any findings made by the court in, or in proceedings for, the order;
v)Any other relevant matter;
l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m)Any other fact or circumstance that the court thinks is relevant.
Many of the considerations above are relevant in the context of the background matters discussed.
Both children spoke positively of their mother and of moving to Country E and spending more time with their maternal family. It is clear from the Children and Parents Issues Assessment that the children are aligned with the mother. Both children, however, also expressed a sentiment that their father had not put much “effort” into maintaining a relationship with them and voiced a possibility that their move to Country E would encourage the father in this regard. Given their ages it is appropriate that their views, particularly the seventeen year old be given significant weight.
The nature of the children’s relationships with each of their parents has been canvassed above. The children also appear to have a positive relationship with their adult sister who has, by the mother’s account already made plans to move to Country E and their maternal family about whom they spoke fondly to the Family Consultant.
The children have an almost non-existent relationship with the paternal extended family.
The father, by his disengagement with both the children’s lives and these proceedings, has failed to take up the opportunity to spend time with and make decisions for the children. The mother has essentially been solely responsible for maintaining the children since the time of separation given the father’s lack of involvement, non-compliance with the 2009 consent orders and his significant failure to pay child support. As at August 2017 the father owed over $7,000.00 in child support payments. In the circumstances the father has demonstrated a poor attitude towards the responsibilities of parenthood.
If orders are made as proposed by the mother this would see a significant change in the children’s circumstances and present significant practical difficulty in them spending time with the father. However, given that the children spend very limited time with the father at present, his lack of engagement in these proceedings and the mother’s proposed orders allowing for the father to spend time with the children and continue to communicate with them, this is a factor that favours the orders sought by the mother.
The parenting capacity of the father is questionable given the allegations made by the mother as to the father’s aggressive behaviour, particularly in light of the two AVOs made against him for the mother’s protection, and substance misuse in the past and the children’s contentions that the father does not make an effort to spend time or communicate with them. The mother’s capacity to care for the children including for their intellectual and emotional needs appropriately is not in dispute.
It is clear that the mother will be able to facilitate the children maintaining a connection to their Country D heritage, particularly through contact with the extended maternal family.
It is appropriate that in the circumstances, where the mother and children face significant uncertainty about milestones coming up in their lives, for the proceedings to be concluded.
Each of the above considerations supports the orders as sought by the mother and such orders are, for the reasons set out above, clearly in the best interests of the children.
Orders will be made accordingly.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 28 September 2018.
Associate:
Date: 28 September 2018
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Family Law
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